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Mealey's Daubert

April 18, 2019
5th Circuit Fixes Opinion Upholding Use Of Crash Investigator As Expert Witness

NEW ORLEANS — Although the Fifth Circuit U.S. Court of Appeals on April 17 revised an opinion to correct inconsistent statements, it did not change its original holding that a trial court properly allowed a Texas state trooper who witnessed and investigated a fatal tractor-trailer crash to offer expert opinions on the cause of the accident (Alexandro Puga, et al. v. RCX Solutions, Inc., No. 17-41282, 5th Cir., 2019 U.S. App. LEXIS 11229).
April 17, 2019
Magistrate Rules On 2 Experts In Suit Over Highway Crash Involving Tractor-Trailer

SAN ANTONIO — An economics expert can testify about lost-wage damages a driver suffered after a tractor-trailer hit his car, but a trucking safety expert cannot opine that the driver of the rig caused the accident because the expert is not an accident reconstructionist, a Texas federal magistrate judge ruled April 16 (Sergio Alpizar v. John Christner Trucking, LLC, et al., No. 5:17-cv-00712, W.D. Texas, 2019 U.S. Dist. LEXIS 64751).
April 16, 2019
Allowance Of Experts In Marine’s Child Sex Conviction Upheld On Appeal

WASHINGTON, D.C. — A U.S. Marine corporal’s conviction for raping his 2-year-old son stands after a military appeals court affirmed April 15 on all grounds, including that the court-martial judge properly allowed expert testimony on test results showing that the child had gonorrhea (United States v. Nicholas S. Baas, No. 201700318, Navy-Marine Corps Crim. App., 2019 CCA LEXIS 173).
April 16, 2019
Expert’s Liability Opinions Stricken From Boat Worker’s Slip-Fall Action

NEW ORLEANS — A Louisiana federal judge on April 11 excluded testimony from a slip-and-fall plaintiff’s liability expert for lack of reliability and relevance but allowed his two damages experts to testify on their calculations of the plaintiff’s lost wages due to his injuries (Joshua T. Lewis v. Marquette Transportation Company, LLC, et al., No. 17-10917, E.D. La., 2019 U.S. Dist. LEXIS 62528).
April 15, 2019
Retired Judge’s Opinion Testimony Excluded, May Be Prejudicial To Insurer

DETROIT — A Michigan federal judge on April 10 granted an insurer’s motion to exclude the opinion testimony of a retired judge who presided over an underlying personal injury suit that resulted in a $22.6 million verdict against the insureds because the retired judge’s testimony could be prejudicial to the insurer, which is defending itself against a bad faith claim asserted by the insureds (Reliable Transportation Specialists Inc., et al. v. Wausau Underwriters Insurance Co., No. 15-12954, E.D. Mich., 2019 U.S. Dist. LEXIS 61537).
April 12, 2019
Report On Song Infringement Is Not The Work Of An Expert, Judge Finds

NEW ORLEANS — A musicologist’s expert report and testimony on the similarities between copyrighted New Orleans jazz songs and accused infringing hip-hop works was stricken April 10 by a Louisiana federal judge, who said the plaintiff’s expert admitted that the jazz songwriter actually performed the analyses for the report, not the expert (Paul Batiste v. Ryan Lewis, et al., No. 17-4435, E.D. La., 2019 U.S. Dist. LEXIS 61605).
April 11, 2019
1 Opinion By Chiropractor Cut, 1 Allowed In Slip-Fall Suit Against Cruise Line

MIAMI — A chiropractor who treated a woman after she slipped and fell during a cruise can testify about his knowledge of spinal surgery but cannot opine that the fall caused her injury because he did not submit an expert report, a Florida federal magistrate judge decided April 10 (Julia Underwood v. NCL [Bahamas] Ltd., No. 17-24492, S.D. Fla., 2019 U.S. Dist. LEXIS 61188).
April 10, 2019
Judge Denies City’s Request For Injunction Requiring Contamination Investigation

CHICAGO — A federal judge in Illinois on April 9 denied a city’s request for a temporary injunction that would require two utility companies to investigate and remediate manufactured gas waste oil (MG waste oil), methane and polycyclic aromatic hydrocarbons (PAH) contamination at a former manufactured gas station and found that experts proffered by the parties are qualified to testify about the migration of the contamination (Evanston, Ill. v. Northern Illinois Gas Company, et al., No. 16-C-5692, N.D. Ill., 2019 U.S. Dist. LEXIS 60707).
April 8, 2019
Paulsboro Derailment Court Properly Excluded Experts, 3rd Circuit Decides

PHILADELPHIA — Two experts for a business allegedly damaged by the 2012 Paulsboro, N.J., train derailment and chemical spill failed to provide reliable, relevant opinions on the damage caused by the wreck, the Third Circuit U.S. Court of Appeals held April 5 in affirming summary judgment to the train operator (Ace Pallet Corporation, et al. v. Consolidated Rail Corporation, et al., No. 18-2746, 3rd Cir., 2019 U.S. App. LEXIS 10105).
April 5, 2019
Expert Testimony On Cell Site Data To Track Robbers’ Phones Affirmed By Panel

RICHMOND, Va. — The Fourth Circuit U.S. Court of Appeals on April 3 affirmed the bank robbery conviction and 19-year prison sentence for a Maryland man after finding that the trial court properly allowed an expert for the government to opine on historical cell site location evidence (United States v. Timothy Allen McNeal, No. 18-4405, 4th Cir., 2019 U.S. App. LEXIS 9804).
April 4, 2019
Expert’s Opinions Trimmed In Diabetic’s Disability Bias Suit Against Bus Company

HARRISBURG, Pa. — A Pennsylvania federal judge on April 2 excluded some opinions of a diabetes expert for a mechanic in an employment discrimination action against a bus company while denying summary judgment to both parties (Richard A. Miller, Jr. v. Lebanon County Transit Authority, No. 1:17-cv-1368, M.D. Pa., 2019 U.S. Dist. LEXIS 56024).
April 1, 2019
Majority Rejects Rule For Vocational Expert Testimony In Disability Cases

WASHINGTON, D.C. — The Social Security Administration (SSA) does not need a categorical rule requiring vocational expert witnesses in disability benefits hearings to provide data to back up their job availability opinions when requested by an applicant to meet the “substantial evidence” standard for such hearings, a divided U.S. Supreme Court held April 1 (Michael J. Biestek v. Nancy A. Berryhill, No. 17-1184, U.S. Sup.).
March 27, 2019
Expert Opinions, Auto Defect Claims Properly Tossed, 4th Circuit Decides

RICHMOND, Va. — A trial court correctly awarded Ford Motor Co. summary judgment on consumers’ design defect claims over vehicle acceleration problems after properly excluding the consumers’ expert witness opinions as unreliable, the Fourth Circuit U.S. Court of Appeals held March 25 (Lance R. Belville, et al. v. Ford Motor Company, No. 18-1470, 4th Cir., 2019 U.S. App. LEXIS 8838).
March 26, 2019
9th Circuit: Injured Man Acting As Own Expert Fails Daubert Standards

PASADENA, Calif. — A man who was injured using a spray-coating gun failed in his attempt to serve as his own expert witness, causing him to lose his product liability case for lack of causation evidence, the Ninth Circuit U.S. Court of Appeals affirmed March 18 (Jason Scott Theis v. Graco, Inc., No. 17-56723, 9th Cir., 2019 U.S. App. LEXIS 7964).
March 14, 2019
Pennsylvania High Court To Hear Pesticide Cancer Case, Rule On Evidence Standard

HARRISBURG, Pa. — The Pennsylvania Supreme Court on March 5 agreed to hear an appeal in a wrongful death lawsuit to determine whether a divided lower court reached the correct conclusion regarding the application of the Frye evidence standard in a pesticide cancer lawsuit against numerous chemical companies (Richard Thomas Walsh v. BASF Corporation, et al., No. 14 WAP 2019, Pa. Sup.).
March 14, 2019
Petitioner Says Exclusion Of Experts In Chemical Exposure Suit Warrants Review

WASHINGTON, D.C. — The Second Circuit U.S. Court of Appeals erred in affirming the exclusion of a man’s causation experts in his case against his former employers alleging that he contracted an autoimmune disease from exposure to toxic substances at work, the former employee tells the U.S. Supreme Court in a Feb. 26 petition for a writ of certiorari (Timothy J. Rizzo v. Applied Materials, Inc., et al., No. 18-1153, U.S. Sup., 2019 U.S. S. Ct. Briefs LEXIS 825).
March 13, 2019
Judge Strikes Expert For Estate In Suit Over Fatal Police Shooting In Chicago

CHICAGO — An expert for the estate of a black man who was shot and killed by Chicago police cannot offer his opinions in the estate’s civil rights suit against the city because they would not help a jury and they are based on unreliable methods, an Illinois federal judge decided March 11 (Estate of Pierre Loury v. Chicago, et al., No. 16-cv-4452, N.D. Ill., 2019 U.S. Dist. LEXIS 38029).
March 12, 2019
DNA Tester In Child Sex Case Need Not Be Expert, D.C. Circuit Rules

WASHINGTON, D.C. — A trial court properly found that a person who conducted DNA testing on samples from a man eventually convicted of having sex with an 11-year-old girl presented factual testimony at the trial, not expert opinions, the District of Columbia Circuit U.S. Court of Appeals determined March 8 (United States v. Robert Kelsey, No. 16-3125, D.C. Cir., 2019 U.S. App. LEXIS 6914).
March 11, 2019
Expert Properly Excluded In Oil Well Contract Row, 10th Circuit Rules

DENVER — A federal court in Colorado did not err in excluding expert testimony for an oil company on industry customs in a breach of contract dispute or in making comments about the expert in front of the jury, the 10th Circuit U.S. Court of Appeals determined March 7 (Bill Barrett Corporation v. YMC Royalty Company, LP, et al., No. 18-1067, 10th Cir., 2019 U.S. App. LEXIS 6826).
March 8, 2019
Expert Testimony Admitted In Contract Feud Between 2 Beverage Businesses

ST. LOUIS — A Missouri federal judge on March 5 allowed testimony from experts for both sides in a contract dispute between two beverage companies, telling the parties they can challenge each opposing expert’s opinions at trial (Paul Beverage Co., Inc. v. The American Bottling Co., No. 4:17-cv-2672, E.D. Mo., 2019 U.S. Dist. LEXIS 34743).